Memorandum Of Appeal-appellee

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT 7th Judicial Region Branch 62, Oslob , Cebu LUCILLE M. TEVES, Plaintiff -Appellee, -versus-

APPEALED CASE NO. OS -1865A (CIVIL CASE No.136-Sm)10th MCTC For: Ejectment (Forcible Entry)

MARILYN BASILIO, Defendant - Appellant. x------------------------x APPEAL MEMORANDUM (For the Appellee) PREFATORY STATEMENT

A person occupying a parcel of land, by himself and through his predecessors – in interest ,enjoys the presumption of ownership, anyone who desires to remove him from the property must overcome such presumption by relying solely on the strength of his claims Plaintiff-Appellee, ( “Appellee” ) by counsel states : 1. The parties in this case are : 1.1 The Appellee Lucille M. Teves has the residence address at Tangbo ,Samboan , Cebu. 1.2 The Appellant Marilyn Basilio, has declared two residences one in Calatagan, Samboan , Cebu as she admitted in her Answer the pa.1.2 of the Complaint and the other residence is in Tangbo, Samboan Cebu as she provided in her personal circumstance in her Judicial Affidavit. (in her Position Paper)

Appelee’s Memorandum Teves vs. Basilio

2. The Appeal was directed at the Decision rendered by the Municipal Circuit Trial Court in Samboan, Cebu dated December 19,2017 2.1 The Decision reads : “WHEREFORE, judgement is hereby rendered in favor of the plaintiff Lucille M. Teves, ordering the defendant Marilyn Basilio, and all persons claiming under her, to vacate the premises of Lot 5049 situated at Tangbo, Samboan, Cebu and turn over its peaceful possession to the plaintiff. The defendant is further ordered to pay the plaintiff the following amounts : (1) reasonable rent for the use and occupation of the premises at the rate of PhP 2,000.00 per month to be computed from March 2017 until such time that the defendant finally vacates the same; (2) Attorney’s fees in the amount of PhP 20,000.00 and (3) Costs of suit. The defendant’s counterclaims are dismissed. SO ORDERED” 3. The material dates are as follows: 3.1 On February 6, 2018 the defendant received the Judgment rendered by the Municipal Circuit Trial Court in Samboan on Civil Case No.136, (the date is provided in her Motion for Reconsideration ) but defendant did not comply on the said Judgment..

3.2 On February17,2018, defendant filed a Motion for Reconsideration directed against the Judgment, instead of filing Notice of Appeal within fifteen (15) days of receipt of the Judgment. 3.3 The Court outrightly denied the Motion for Reconsideration considering it is a prohibited motion under Rules on Summary Procedure Section 19 (c). Appelee’s Memorandum Teves vs. Basilio Page 2 of 10

3.4 On March 9,2018 Plaintiff filed a Motion for the Issuance of Writ of Execution and was set for hearing on April 17, 2018. Unfortunately , the lower court transmitted the records to Regional Trial Court. Such that On a Summary Hearing dated April 17, 2018 on the Plaintiff`s Motion for the Issuance of Writ of Execution, the lower Court could no longer act on the pending motion due to the transmission of the records to the appellate court , therefore the court directed the parties and counsels to refer the Motion for the Issuance of Writ of Execution and /or Comment /Opposition thereon to the appellate court.

3.5 Upon examination of the records of this case, it shows that the Notice of Appeal filed on March 15, 2018 was filed out of time and there was no accompanying superseadeas bond which is a requirement to complete an appeal. Hence, the Notice of Appeal could not stay the execution. 3.6 Clearly said under the 1997 Rules of Civil Procedure, Rule 70 Section 19, Immediate execution of judgment; how to stay same. — If judgment is rendered against the defendant, execution shall issue immediately upon motion unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the papers, to the clerk of the Regional Trial Court to which the action is appealed. 3.7 In the case of Herminia Acbang vs. Hon. Jimmy H.F. Luczon ,Jr., Presiding Judge, Regional Trial Court , Branch 01, Second Judicial Region, Tuguegarao City , Cagayan , and Spouses Maximo Lopez and Heidi L. Appelee’s Memorandum Teves vs. Basilio Page 3 of 10

Lopez , G.R . No. 164246 January 15,2014 . To quote the Supreme Court : “The failure of the defendant to comply with any of the conditions is a ground for the outright execution of the judgment, the duty of the court in this respect being ministerial and imperative . Hence if the defendant-appellant has perfected the appeal but failed to file a supersedeas bond , the immediate execution of the judgment would automatically follow. Converesely the filing of the supersedeas bond will not stay the execution of the judgment if the appeal is not perfected . Necessarily then, the supersedeas bond should be filed within the period for the perfection of the appeal. 3.8 On a Summary Hearing dated April 17, 2018 on the Plaintiff`s Motion for the Issuance of Writ of Execution, the lower Court could no longer act on the pending motion due to the transmission of the records to the appellate court , therefore the court directed the parties and counsels to refer the Motion for the Issuance of Writ of Execution and /or Comment /Opposition thereon to the appellate court. 3.9. Thus, when the defendant filed a Motion for Reconsideration of the MCTC Judgment, the motion did not stop the running of the period to appeal. With the continuous running of this period, the December 19, 2017 MCTC Judgment which defendant through counsel received on February 6, 2018 had long lapsed to finality when the defendant - appellant filed their Notice of Appeal only on March 15, 2018 which was already beyond the period to appeal. STATEMENT OF FACTS

4. The subject lot being disputed in this case is described as Lot 5049 in which the Plaintiff possessed through her predecessors in interest. She was in actual , physical possession before the defendant entered the property . 5. This property was cultivated by Luiz Gonzales. In 1946 he sold some coconuts planted in that lot. In 1947 Luiz Gonzales sold the lot and all the coconuts therein to Arsenio Teves the grandfather of the Appelee’s Memorandum Teves vs. Basilio Page 4 of 10

Plaintiff. ( See the Judicial Affidavit of Neopolo Teves , Exhibit “D”, containing also the documents of Sale ( Plaintiff’s Position Paper . ) 6. Meinardo Teves as one of the successors – in – interest of Arsenio Teves and who also cultivated the lot applied for Homestead Patent. It was approved by the proper Government Authority considering that it was alienable and disposable, such that an Original Transfer Certificate was granted. (See Exh.” F “ - ,the technical description of the said lot is found at the back of the Title itself marked as Exh. F-1 (Position Paper ) 7. By agreement between the siblings Meinardo M. Teves granted the plaintiff - Lucille M.Teves the authority to occupy the said lot . Thus plaintiff herself paid the real property taxes . (See Exh. K, K-1, K-2. of the Position Paper ) 8. Sometime in March ,2017 defendant destroyed the fence made of barbed wire surrounding the property ,and cleared the property from ipil -ipil , and other trees. The said property is planted with bamboo wherein defendant -appellant also cut and built a structure made of light materials without any authorization nor consent from the plaintiff. (See photographs Exh. “ J” , “J-1” of the Position Paper ) Photos of the house made of light materials implied that they never resided the house yet , and that it is newly built. 9. As a lawful possessor, the real party in interest who stand benefited or prejudiced of the outcome of the case, the plaintiff -appellee proceeded to Barangay Conciliation to seek refuge in order to protect her right . Marilyn Basilio the defendant -appellant refused to vacate , and that no conciliation was reached at the Lupong taga Pag Sundo. (See Exh .”L” of the Position Paper).

ISSUES I THE HONIRABLE COURT ERRED IN DECLARING PLAINTIFF-APPELLE IN EFFECT AS THE REAL PARTY -IN-INTEREST Appelee’s Memorandum Teves vs. Basilio Page 5 of 10

II THE HONORABLE COURT ERRED IN ORDERING DEFENDANT AND ALL PERSONS UNDER HER TO VACATE THE PREMISES OF LOT NO.5049 AND TURN OVER ITS PEACEFUL POSSESSION TO THE PLAINTIFF. III THE HONORABLE COURT ERRED IN ORDERING DEFENDANT TO PAY THE REASONABLE RENT, ATTORNEY’S FEES AND COST OF THE SUIT.

ARGUMENTS/DISCUSSION I. THE PLAINTIFF IS THE REAL PARTY -IN -INTEREST 10. The lawful possessor is the aggrieved party in an action for ejectment whether she owns the subject property or not. The issue in ejectment is possession not ownership .Therefore the plaintiff -appelleee in this case as the lawful possessor is the real party -in-interest and can proceed to Barangay Conciliation to protect her right from any intruder in the subject property with or without the Special Power of Attorney from the owner. The Special Power of Attorney from Meinardo M. Teves to Lucille M. Teves clarifies that the property does not belong to the defendant and that she has no right to possess either. 11. Rule 3 Sec. 2 of the of the 1997 RULES OF CIVIL PROCEDURE, Parties in interest. — A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. Appelee’s Memorandum Teves vs. Basilio Page 6 of 10

12. Since it is the plaintiff- appellee who is benefited or injured in this case clearly she is the real party -in -interest. The date in the Special Power of Attorney is of no moment because it is the plaintiff-appellee’s right to possess and enjoy the property that is first violated .

II. THERE IS NO ERROR COMMITTED BY THE HONORABLE COURT IN ORDERING DEFENDANTAND ALL PERSONS UNDER HER TO VACATE THE PREMISES OF LOT NO.5049 AND TURN OVER ITS PEACEFUL POSSESSION TO THE PLAINTIFF 13. The court in its Judgment committed no error when it said that “Plaintiff satisfactorily established possession through straightforward testimonies of Lisondra et al”. (page 5 of 9 JUDGEMENT Civil Case No. 136 -SM, Teves vs. Bsilio ) . The witnesses uniformly identified the defendant as the one who removed the barbed wire fence, entered the property or cleared the area when the plaintiff was in Leyte. 14. The court gave great weight to the title which is indefeasible in legal contemplation (page 6 of 9 JUDGEMENT Civil Case No. 136 -SM, Teves vs. Bsilio ) . The title is in the name of plaintiff’s brother Meinardo who in turn consented and authorized the former’s possession. 15. Defendant’s claim was based on payment of tax receipts paid by her predecessor’s in interest. The plaintiff-appellee likewise presented real property tax receipts paid by her predecessors -in -interest. If based on the payment realty taxes it is the plaintiff who presented receipts in her name paid on 2013, 2014,and 2017 (see Exhibts K,K-1,K2 in the plaintiff’s position paper). 16. The defendant presented one and only payment in March 2017, the time of her forcible entry. Appelee’s Memorandum Teves vs. Basilio Page 7 of 10

17. Defendant’s witness Buenaventura Rodriguez stated that their land adjoin each other. This is a support to the claim that they became neighbors only at the time defendant entered the property , because Buenaventura Rodriguez has not presented title over the property in the name of the defendant for her to be called an owner. 18. All the requisites in an action for forcible entry have been met .Under the circumstances , given the Judicial Affidavits and the pieces of documentary evidence of the plaintiff, the defendant was not able to controvert it . Thus, defendant has no right to possess and therefore should turn it over the possession to the plaintiff -appellee of the subject lot 5049 , because unlawful withholding of property is not allowed. The court will always uphold, respect prior possession.

III. THERE WAS NO ERROR COMMITTED BY HONORABLE COURT IN ORDERING DEFENDANT TO PAY THE REASONABLE RENT, ATTORNEY’S FEES AND COST OF THE SUIT. 19. The peaceful possession of the plaintiff over the subject lot has been disturbed by the defendant , causing her to incur expenses to litigate this case in order to seek refuge in the court. 20 .The time when the defendant forcibly entered the property, plaintiff was deprived of the income of the harvest of the coconuts . As stated in the Judicial Affidavit of Vicente Villarin and Semporado Petiluna that they harvested the coconuts and gave it to the defendant . Plaintiff - Appellee will leave it to the owner - Meinardo Teves to file a case for the crime committed those who harvested coconuts in his property without consent and authority. The cost of the bamboos and other trees they cut must also be paid. 21. Defendant deprived the plaintiff of her possession thus , it is but right and just that rent , attorney’s fees and cost of the suit be paid from the time the defendant forcibly entered the premises. Appelee’s Memorandum Teves vs. Basilio Page 8 of 10

March 2017 until such time they will vacate. Considering that they have not made payments so far.

WHEREFORE, premises considered, it is respectfully prayed that 1. The DISMISSAL of the Appeal for lack of factual and legal basis. 2. AFFIRM the Judgment of MCTR -Samboan whereby the defendant is further ordered to pay the plaintiff the following amounts : (1 ) reasonable rent for the use and occupation of the premises at the rate of PhP 2,000.00 per month to be computed from March 2017 until such time that the defendant finally vacates the same; (2 ) Attorney’s fees in the amount of PhP 20,000.00 and (3 )Costs of suit.

3. Issue writ of execution to implement the judgment of the Court should the the records be remanded back to the lower court to ensure its implementation it is likewise prayed. Such other reliefs and remedies consistent with law, justice and equity are also prayed for. Respectfully submitted 10 , Mayl 2018 Cebu City ( for Oslob). A ACOSTA & ASSOCIATES Plaintiff ‘s Counsel Unit 1606, 16F Keppel Building Cardinal Rosales Avenue, Corner Samar Loop, Business Park, Cebu City, Philippines 6000 Landline: 032 231 2642 Mobile: 0928 506 3466 Email: [email protected] Website: http://www.AcostaLaw.ph Appelee’s Memorandum Teves vs. Basilio Page 9 of 10

By: ABRAHAM REY MONTECILLO ACOSTA Roll of Attorneys No. 54441 IBP Lifetime No. 010415; Cebu City Chapter PTR No.177135; 03 January 2018; Cebu Province MCLE Compliance No.: V-0006387; 27 February 2015 And By: LUCILLE M. TEVES Roll of Attorneys No. 66995 IBP No. 5622 ; 01-05-2018 ; Cebu Province Chapter PTR NO. 16726173 ;01- 08-2018 ;Samboan Cebu MCLE Exempt (May 2017 Admitted to the Bar)

Copy Furnished : Atty. ISIAS GUIDOQUIO Counsel for the Defendant Guidoquio Law Firm 2nd Floor , Rm.2 Leyson Bldg., 26 D.Jakosalem St.Cebu City

Registry Receipt No.___________ Post Office :___________________ Date :_________________________

Service is done by registered mail to appellant’s counsel in view of the distance.

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